BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1310| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1310 Author: Gatto (D) Amended: 7/7/15 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/30/15 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 79-0, 5/14/15 - See last page for vote SUBJECT: Disorderly conduct: unlawful distribution of image SOURCE: Attorney General of California DIGEST: This bill provides that jurisdiction for trial of the crime of distribution of a sexual image in violation of an agreement that the image shall remain private and (cyber sexual exploitation) shall include the county in which the offense occurred, the county in which the victim resided at the time of the offense, or the county in which the intimate image was used for an illegal purpose; provides that where the same defendant or defendants commit cyber sexual exploitation crimes in more than one county, and the crimes are part of a scheme or involve substantially similar acts, the charges can be tried in a single county; provides that a search warrant for electronic communications and records can include communications between a service provider and a customer, as specified; and specifies procedures, standards and limitation for obtaining and serving search warrants for electronic communications and computer AB 1310 Page 2 service information. ANALYSIS: Existing law: 1) Provides that a defendant who intentionally distributes the image of the intimate body part of another identifiable person, or an image of the person engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation involving the person depicted, and the defendant and the person depicted agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress is guilty of disorderly conduct, a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. For a second or subsequent conviction, or where the victim is a minor, the maximum jail term and fine is one year and $2,000 respectively. (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).) 2) Includes the following definitions: a) "Distribution" means that the defendant personally distributed the image, or arranged, requested, or intentionally caused another person to distribute that image; (Pen. Code § 647, subd. (j)(4)(B).) b) "Intimate body part" means the genitals, anus, and in the case of a female, any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (Pen. Code, § 647, subd. (j)(4)(C).) 3) Provides that distribution of an intimate image in violation of a privacy agreement is not a crime if any of the following applies: a) The distribution is made in the course of reporting an unlawful activity. b) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. AB 1310 Page 3 c) The distribution is made in the course of a lawful public proceeding. (Pen.Code, § 647, subd. (j)(4)(D).) 4) Provides that it is an alternate felony-misdemeanor for a person to willfully obtain the personal identifying information of another person and to use such information to obtain, or attempt to obtain, credit, goods, or services in the name of the other person without consent. A felony sentence for identity theft is to be served in a county jail pursuant to Penal Code Section 1170, subdivision (h), unless the defendant is disqualified from a jail term because he or she has suffered a serious felony conviction or is required to register as a sex offender. (Pen. Code § 530.5, subd. (a).) 5) Defines "personal identifying information" as a name, address, mother's maiden name, place of employment, date of birth, unique biometric data, facial scan, or other unique physical representation or data including and numerous others. (Pen. Code § 530.55.) 6) Provides that the proper jurisdiction - venue - for a crime is in a court in the jurisdiction where the crime was committed and that when a crime is committed partly in one county and party in another, trial can be held in either county. (Pen. Code §§ 777 and 781.) 7) Provides that charges of identity theft can be filed in the county where the theft of the personal information occurred or the county where the information was used illegally. Where multiple identity theft crimes involving the same defendant and the same victim occur in multiple jurisdictions, any one of those jurisdictions is a proper jurisdiction for trial of all charges. (Pen. Code § 786, subd. (b)(1).) 8) Provides that where multi-county identity theft crimes involving the same defendants and the same victim are filed in a single county, the court shall determine if that county is the proper place for trial, or whether some charges should be filed in another county, as specified. (Pen. Code § 786, subd. (b)(2).) AB 1310 Page 4 9) Provides that a search warrant may be issued upon any of the following grounds: a) The property was stolen or embezzled; b) The property was used as to committing a felony; c) A person possesses the property with the intent to commit a crime, or the property is being held for purpose of concealing them or preventing them from being discovered; d) The property or things to be seized consist of any item or evidence that tends to show that a felony has been committed; e) The property consists of evidence of sexual exploitation of a child or possession of child pornography; f) There is a warrant to arrest a person; g) A provider of electronic communication or remote computing service has records or evidence showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are possessed by any person with the intent to commit a misdemeanor, or for the purpose of concealment; h) The things to be seized include evidence of failure secure workers compensation; i) The property includes a firearm or deadly weapon and specified circumstances related to domestic violence, examination of a person's mental condition; protective orders, apply; j) The information to be received from the use of a tracking device tends to show a felony or misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code ; aa) A driving under influence suspect has refused to submit or complete, a blood test as required, as limited AB 1310 Page 5 and specified; or bb) The property is a firearm or ammunition and a gun violence restraining order applies. (Pen. Code § 1524, subd. (a)(1)-(14).) 10)Provides that the property seized in a search warrant may be taken from any place, or from any person in whose possession the property or things may be. (Pen. Code, § 1524, subd. (b).) 11)Provides that when the property or things constitute evidence of identity theft, the warrant may authorize a search in another county if the person whose identifying information was taken or used resides in the same county as the issuing court. (Pen. Code § 1524, subd. (j).) 12)States that a provider of an electronic communication or remote computing shall, pursuant to a warrant, disclose to a prosecuting or investigating agency the name, address, telephone number or subscriber identity, billing records and length and types of services. (Pen. Code §§ 1524.3, subds. (a)-(b).) 13)Allows a court issuing a search warrant as to an electronic communication or remote computing service, to grant a motion to quash or modify the warrant if the records sought are unusually voluminous or compliance would cause an undue burden on the provider. (Pen. Code§ 1524.3, subd. (c).) 14)States that a provider of electronic communication or remote computing services, upon the request of a peace officer, shall take all necessary steps to preserve records and evidence in its possession pending the issuance of a warrant or through a written request and affidavit declaring an intent to file a warrant. Records shall be retained for a period of 90 days, with a 90-day extension upon a renewed request. (Pen. Code § 1524.3, subd. (d).) This bill: 1) Expands the jurisdiction of trial for unauthorized distribution of a sexual image to include the county in which the offense occurred, the county in which the victim resided AB 1310 Page 6 at the time the offense was committed, or the county in which the intimate image was used for an illegal purpose. 2) Allows prosecution in any of the jurisdictions when multiple offenses of unauthorized distribution of an intimate image, either all involving the same defendants or defendants and the same intimate image belonging to the one person, or all involving the same defendant or defendants and the same scheme of substantially similar activity, occur in multiple jurisdictions. 3) Requires the court to determine the proper place of trial, as specified. 4) Requires the district attorney filing the complaint to show that the district attorney in each county where the charges could have been filed has agreed that the matter should proceed in the county of filing. 5) Requires the court to hold a hearing on its own motion, or the motion of the defendant, to determine whether the county of the victim's residence is the proper venue for trial, when an action for unauthorized distribution of an intimate image is filed in the county in which the victim resided at the time the offense was committed and no other basis for the jurisdiction applies. In ruling on the matter the court shall consider the rights of the parties, the access of the parties to evidence, the convenience to witnesses, and the interests of justice 6) States that a provider of electronic communication service or remote computing shall disclose to the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant, in addition to the subscriber records, and service and billing information allowed under current law. 7) Requires that the search warrant be limited to information necessary to achieve the objective of the warrant, including by specifying the targeted individuals or accounts, applications or services, the types of information, and the time periods covered by the warrant. 8) Specifies that information obtained through the execution of AB 1310 Page 7 the warrant pursuant that is unrelated to the objective of the warrant shall be sealed and not subject to further review without a court order. 9) Requires notice to a subscriber or customer upon receipt of the records by the governmental entity that obtained the warrant. 10)Authorizes the court to delay notification, in 90-day increments, upon showing that there is reason to believe that notification of the warrant may have an adverse result, including: endangering someone's life or safety , flight from prosecution, destruction of or tampering with evidence, intimidation of a witness; harm to the investigation or delay of trial. 11)Requires, upon expiration of any delay of notification, the governmental entity to provide to the customer by regular mail or e-mail a copy of the request and the following: a) Statement of the nature of the law enforcement inquiry; b) Notice that information maintained for the customer by the service; provider was requested by and supplied to the governmental authority; c) The date of the request and information supplied; d) Disclosure of any delay in notification; e) The court that issued the order; and f) A written inventory of the property that was taken. Background The proper place of trial is generally the county in which the crime occurred. However, an identity thief can use a victim's information across the state. Since 2002, trial of identity theft crimes that occurred in multiple counties and involved a single victim may be held in a single county. Such cases could give rise to overlapping prosecutions, leading to numerous problems, including investigation and evidence collection AB 1310 Page 8 problems, claims that the first prosecutor to file charges should have resolved all charges arising out of an incident and others. To address such concerns, the applicable venue section was amended to direct a court to consider whether all charges should be tried in one county, or whether some charges should be severed and tried in a different county. Legislation in 2009 addressed another relatively common situation - the same defendants are involved in an identity theft scheme that involved numerous victims in more than one county. Where a common scheme is involved, evidence from each incident or crime is typically admissible as to each offense. Requiring separate prosecution in each county where related identity theft cases occurred could result in presentation of the same evidence in each county resulting in a waste of judicial, prosecution and defense resources. Similar issues or considerations apply to cases involving cyber porn revenge or exploitation. Under existing law in cyber porn revenge cases, the defendant and prosecutors could spend a great deal of time and expense negotiating dispositions that reach across county lines. Numerous prosecutions can be filed, wasting judicial resources and inconveniencing witness. While specifically granting the authority for the government to obtain the contents of electronic communications between the subscriber and the service provided in misdemeanor cases, this bill includes a fairly long list of procedures and limitations applicable in these matters. In particular, this bill requires that the information sought be limited to that necessary to the objective of the warrant, that unrelated information be sealed and that notice be given unless specified adverse consequences could occur. The author has explained that this bill would have originally allowed a warrant for the search of a suspect's home computer. To address arguments that execution of a warrant at a person's home was too great an intrusion for a misdemeanor prosecution of cyber-porn revenge or exploitation, the bill was amended to authorize a warrant served on a service provider for the contents of the suspect's communications with his or her service provider. As noted above, the amendments also included a number of protections for the target of the investigation and service providers. AB 1310 Page 9 FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No According to the Senate Appropriations Committee: Expanded jurisdictional authority: Potential cost savings in judicial, prosecutorial, and defense counsel resources to the extent the expanded jurisdictional authority eliminates the need to conduct separate proceedings in more than one county. Noticing requirements: Potential minor to moderate increase in local costs, potentially in excess of $50,000 statewide, to local law enforcement agencies for those noticing provisions in this bill that exceed requirements under existing state and federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used. SUPPORT: (Verified 8/28/15) Attorney General of California (source) Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California District Attorneys Association California Police Chiefs Association California Statewide Law Enforcement Association Crime Victims United of California Los Angeles Police Protective League Peace Officers Research Association of California Riverside Sheriffs Association OPPOSITION: (Verified 8/28/15) California Attorneys for Criminal Justice California Public Defenders Association AB 1310 Page 10 ASSEMBLY FLOOR: 79-0, 5/14/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Mayes Prepared by:Jerome McGuire / PUB. S. / 8/31/15 17:15:06 **** END ****